May 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMAR PURNELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2798.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2009
Before Judges R. B. Coleman and Simonelli.
Defendant Lamar Purnell appeals from the denial of his post-conviction relief (PCR) petition without a hearing. He contends that he was denied the effective assistance of counsel at sentencing. We affirm.
On April 17, 2005, defendant was sitting in a stolen 1994 BMW. A uniformed police officer approached the car with gun drawn and ordered defendant to exit. Ignoring the officer's command, defendant drove off with the officer hanging onto the car. With the officer still hanging onto the car, defendant crashed into a pole, causing the officer to sustain five fractures in his left arm, a torn rotator, two herniated disks and head trauma.
A grand jury indicted defendant for first-degree criminal attempt (murder), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third-degree receiving stolen property (automobile), N.J.S.A. 2C:20-7 (count three); fourth-degree unlawful possession of a weapon (automobile), N.J.S.A. 2C:39-5d (count four); third-degree possession of a weapon (automobile) for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count six). Defendant was also charged with two disorderly persons offenses: resisting arrest and obstructing administration of law, N.J.S.A. 2C:29-2a(1).
Pursuant to a negotiated, unconditional plea agreement, defendant pled guilty to counts two, four and five. In exchange for the guilty plea, the State agreed to recommend an eight-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.*fn1
At sentencing, defense counsel argued that defendant "never anticipated that his conduct would cause the circumstances that flowed out of it" and that this was "a situation that obviously got out of control, a situation that [defendant] did not intend[.]" Counsel also advised Judge Ravin that defendant "would like to receive less than eight years[.]" Further, defendant apologized to the police officer, who was present at sentencing.
The judge found aggravating factor N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense). Defendant was twenty-one years old at the time of the incident. He has a lengthy juvenile record, including fourteen juvenile petitions and six adjudications for theft, resisting arrest, receiving stolen property, unlawful possession of a weapon, and possession of a controlled dangerous substance. He received probation four times as a juvenile. As an adult, defendant has four prior arrests for receiving stolen property, simple assault, burglary, various drug offenses, and a disorderly persons conviction for which he received probation.
The judge also found aggravating factors N.J.S.A. 2C:44-1a(8) (the defendant committed the offense against a police or other law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority); N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law); and N.J.S.A. 2C:44-1a(13) (the defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle). After finding no mitigating factors, the judge concluded that the preponderance of aggravating factors weighed in favor of a custodial term toward the higher end of the range for a second-degree crime. Thus, the judge sentenced defendant in accordance with the plea agreement. He also imposed the appropriate assessments, fees and penalties.
Defendant did not file a direct appeal. Instead, he filed a PCR petition, contending that his attorney was ineffective for failing to argue mitigating factors N.J.S.A. 2C:44-1b(2) (the defendant did not contemplate that his conduct would cause or threaten serious harm); N.J.S.A. 2C:44-1b(8) (the defendant's conduct was the result of circumstances unlikely to recur); N.J.S.A. 2C:44-1b(9) (the character and attitude of the defendant indicate that he is unlikely to commit another offense); and N.J.S.A. 2C:44-1b(11) (the imprisonment of the defendant would entail excessive hardship to himself or his dependents). Defendant has three children and claimed that they needed him for support.
Based on his review of the plea and sentencing transcripts and defendant's pre-sentence report, Judge Ravin concluded that even if defense counsel had argued the mitigating factors defendant now sought, he would not have found them. As to defendant's hardship claim, the judge emphasized that defendant was not his children's primary caretaker and did not support them.
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Ibid. Ineffective assistance of counsel claims require the defendant to show: (1) "'that counsel's performance was deficient[,]'" and (2) "'that the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). It is not enough for the petitioner "to allege simply that an injustice has transpired[.]" State v. Mitchell, 126 N.J. 565, 579 (1992). "The petitioner must be prepared 'to establish, by a preponderance of the credible evidence, that he is entitled to the requested relief.'" Ibid. (internal citation omitted). The petitioner must allege and articulate specific facts which, if believed, would give the court an adequate basis upon which to rest its decision. Ibid.
Based upon our careful review of the record, we discern no reason to disturb Judge Ravin's ruling. We are satisfied that defendant failed to establish a prima facie case of ineffective assistance of counsel. Even if defense counsel had requested them, none of the mitigating factors defendant seeks are supported by the record. State v. Dalziel, 182 N.J. 494, 505 (2005) (citing State v. Roth, 95 N.J. 334, 356-64 (1984)).